Islamic Fiqh > Endowments (waqf) and property > Ghasb: usurpation > Liability for breaking a cross
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
Before treating the subject: if the people of the book display a cross or a tambourine, it may be broken; if they manifest their disbelief openly, they are disciplined by way of correction and prevented from displaying what is forbidden to the Muslims ("al-Mughni", 5/173; "Sharh al-Zarkashi", 2/164; "Kashshaf al-Qina", 4/95; "Sharh Muntaha al-Iradat", 4/212; "al-Maunah", 2/194; "al-Hawi al-Kabir", 7/221, 224; "al-Bayan", 7/81; "al-Najm al-Wahhaj", 5/189; "Mughni al-Muhtaj", 3/301, 302).
There is no disagreement among the jurists: if a Muslim has a cross and someone destroys it, no guarantee falls upon him. If the cross belongs to the people under protection (dhimmis) who display it, its removal becomes obligatory and the one who destroys it guarantees nothing. If it is kept in a manner that does not delight them and is not displayed, the usurper must return it according to all of them; they differ only if it is destroyed: is the guarantee due?
The Hanafis: if a Muslim destroys a Christian's cross, he guarantees its value as a cross, for they are established upon that; it becomes like the wine upon which they are established. Al-Kasani (may Allah have mercy on him) adds: if a Muslim usurps from a Christian a cross belonging to him and it perishes in his hand, he guarantees its value as a cross ("Bada'i al-Sana'i", 7/148; "al-Hidayah", 4/23; "Majma al-Damanat", 1/317; "Umdat al-Qari", 13/29; "al-Fatawa al-Hindiyya", 5/131).
Ibn Batal, the Maliki, teaches: in our day, breaking the cross of the people of the book bound by covenant who display it among us would be an aggression, for it is on that basis that they pay the jizyah; breaking that of the people at war would be a praiseworthy act; likewise killing the pig ("Sharh Sahih al-Bukhari" of Ibn Batal, 6/605).
The Shafi'is and the Hanbalis hold that destroying a cross entails no guarantee, for its sale is unlawful: like the carrion, it is not guaranteed. The proof that its sale is unlawful is the saying of the Prophet (peace and blessings be upon him):
"Allah has forbidden the sale of wine, carrion, the pig and idols."Reported by al-Bukhari and Muslim (agreed upon)
The Shafi'is: idols and crosses require nothing for their nullification, their benefit being forbidden and without compensation. The soundest opinion is that they are not broken in a scandalous manner: it is possible to remove the forbidden form while preserving part of the material, except for the imam, who has the power to do so to deter and discipline; it is better to disassemble them so that they return to what they were before assembly, the name thereby disappearing. According to the opposite opinion, they are broken and smashed until it becomes impossible to restore them as an idol, a cross or any other forbidden thing ("al-Najm al-Wahhaj", 5/191; "Mughni al-Muhtaj", 3/302, 303; "Kinz al-Raghibin", 3/78, 79; "al-Bayan", 7/82; "al-Mughni", 5/174; "al-Kafi", 2/411; "al-Muharrar", 1/363).
Al-Buhuti (may Allah have mercy on him): one who destroys a flute or the like by burning it or throwing it into the sea, or breaks a flute, a tambourine, a cross, or a vessel of gold or silver, guarantees nothing; if he destroys it, he guarantees its weight in gold or silver, without the craftsmanship, as said before. Al-Harithi: there is no disagreement on this ("Kashshaf al-Qina", 4/162, 163; "Sharh Muntaha al-Iradat", 4/190).
Imam al-Bukhari (may Allah have mercy on him) titled a chapter in his Sahih: "Chapter on breaking the cross and killing the pig". Al-Zuhri reports that Sa'id ibn al-Musayyib informed him that he had heard Abu Hurayrah (may Allah be pleased with him) report from the Messenger of Allah (peace and blessings be upon him):
"The Hour will not come until the son of Maryam descends among you as a just judge: he will break the cross, kill the pig, abolish the jizyah, and wealth will overflow until no one accepts it."Reported by al-Bukhari (no. 2344) and Muslim (no. 3264)
Al-Hafiz Ibn Hajar (may Allah have mercy on him) draws from it: one who kills a pig or breaks a cross guarantees nothing, for he performed a commanded act; the Prophet (upon him prayer and peace) informed that 'Isa (upon him be peace) would do it, he who, upon descending, upholds the Law of our Prophet (peace and blessings be upon him). The lawfulness of breaking the cross applies when it is with the belligerents, or with the dhimmi who exceeds the limit to which he committed himself; if he does not exceed it and a Muslim breaks it, he is an aggressor, for it is on that basis that they pay the jizyah. Such is the secret of 'Isa's generalizing the breaking of every cross: he does not accept the jizyah, without this being on his part an abrogation of the Law of our Prophet Muhammad (peace and blessings be upon him); the abrogator is our Law, through the mouth of our Prophet, by virtue of his report and his confirmation ("Fath al-Bari", 5/121).
Whoever has a right over another finds himself in one of two situations. The first: the holder acknowledges the right and shows himself willing to pay it. This is subject to no disagreement: it is not permitted to seize one's right by one's own force.
Ibn Qudamah (may Allah have mercy on him) teaches: if a man has a right over another who acknowledges it and offers to pay it, he may take from his property only what he gives him, without disagreement among the scholars. If he takes something of his property without his permission, he must return it, even if it equals his right; for it is not permitted to take possession of an object of his wealth without his choice, absent necessity, even if the object is of the same kind as his right, since a man may have a purpose in the very object. If he destroys it or it perishes, it becomes a debt upon him; and if the debt established upon him is of the kind of his right, the two offset one another according to the qiyas of the madhhab and the prevalent opinion of al-Shafi'i. If the debtor withholds payment for a cause that excuses him, such as deferral or insolvency, no taking is permitted: if he takes something, he must return it if it survives, or its substitute if it perished; no offsetting here, for the debt he holds is not yet due, unlike the previous case ("al-Mughni", 10/175). Al-Zarkashi: if he does not withhold him from his right, it is not permitted to him at all to take ("Sharh al-Zarkashi", 3/435). Al-Shirazi adds: when the right is owed by a man who does not prevent its payment, the choice of discharging the debt belongs to the debtor; if he takes without permission, he must return it, and if it perishes, he guarantees it, having taken another's property without right ("al-Muhadhdhab", 2/317; "al-Tanbih", p. 265).
The second situation: he finds his right with a usurper or a denier, unable to take it. The scholars differ: may one who has a right, such as a deposit denied by its depositary, seize the property of the one who owes him that right if he finds it? May he take if the property is of the kind of his right, or not; or not at all? Several opinions emerge.
The first opinion: one who finds his right may take it, whether it be of the kind of his right or not, and whether the one withholding it knows or not. This is the established opinion of the Malikis ("al-Tamhid", 20/159, 160; "Sharh Mukhtasar Khalil", 6/118; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/139, 140; "al-Taj wal-Iklil", 4/277, 280; "Tahbir al-Mukhtasar", 4/361, 362; "Balghat al-Salik", 3/360; "Minh al-Jalil", 8/550), of the Shafi'is ("al-Umm", 5/103, 105; "al-Muhadhdhab", 2/317; "al-Tanbih", p. 265; "Sharh Sahih Muslim", 12/7) and of the Hanbalis according to one view ("al-Mughni", 10/175, 277; "al-Sharh al-Kabir", 11/363; "al-Mubdi", 10/97; "al-Insaf", 11/308, 310). It is also the fatwa of the Hanafis in these times ("Hashiyat Ibn Abidin", 6/151): when a right is denied or the debtor is unable to pay and the creditor comes upon property, he may take it, of the kind of his right or not, whether the one withholding it knows of the right or not.
Their evidence is first the word of Allah, the Most High:
"Whoever transgresses against you, transgress against him in the manner he transgressed against you."
Surah Al-Baqarah, 194
Then the hadith reported by the two shaykhs and others, from Aisha (may Allah be pleased with her):
Hind bint 'Utbah, the wife of Abu Sufyan, came to the Messenger of Allah (peace and blessings be upon him) and said: "O Messenger of Allah, Abu Sufyan is a miserly man: he gives me nothing of the maintenance that suffices me and my children except what I take from his property without his knowledge. Am I sinful in this?" The Messenger of Allah (peace and blessings be upon him) said: "Take from his property, in a known manner, what suffices you and your children."Reported by al-Bukhari (no. 2328), Muslim (no. 1714) and Abu Dawud (no. 3532)
In the Sahih of al-Bukhari (2/868), this hadith is placed under the chapter on the compensation of the wronged one when he finds the property of his wrongdoer, and Ibn Sirin comments: he offsets it against what is due to him, reciting:
"If you punish, then punish with the like of that with which you were afflicted."
Surah An-Nahl, 126
Finally comes the hadith of 'Uqbah ibn 'Amir (may Allah be pleased with him):
We said to the Prophet (peace and blessings be upon him): "You will send us out, and we will come upon a people who will not receive us; what do you see in that?" He said to us: "If you come upon a people who offer you what befits a guest, accept it; otherwise take from them the right of the guest."Reported by al-Bukhari (no. 2329) and Muslim (no. 1727)
The Malikis specify: when a man's right is denied by a rebellious recalcitrant or a wrongdoer, whether it be a deposit or otherwise, and he is able over the property of the one withholding or denying it, he may take from it the measure of his right, under two conditions:
Likewise, when two persons each have a right over the other and one denies the right of his counterpart, the latter may deny what equals his right, swear an oath and refrain, by virtue of Surah Al-Baqarah, 194, and the hadith of Hind; no distinction is made in the madhhab between taking the object, its substitute or its value.
They answer the hadith "Render the trust to the one who entrusted you, and do not betray the one who betrayed you" by saying: the prohibition bears on initiating the betrayal or its like; one who retaliates with the like of what he suffered and takes his right is not a traitor; the traitor is one who takes what does not belong to him or more than his due ("al-Tamhid", 20/159, 160; "Sharh Sahih al-Bukhari" of Ibn Batal, 6/585, 586; "Sharh Mukhtasar Khalil", 6/118, 7/235; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/139, 140, 6/155, 156; "al-Taj wal-Iklil", 4/277, 280; "Tahbir al-Mukhtasar", 4/361, 362; "Balghat al-Salik", 3/360; "Minh al-Jalil", 8/550).
Among the Shafi'is, al-Shirazi teaches: one who has a right over a man who prevents its payment, if he cannot proceed through the judge, may take from his property, by virtue of the Prophet's saying (peace and blessings be upon him): "There is no harm, and no reciprocating harm"; the prevention of his taking his property in this situation is a harm. If he can proceed through the judge with proof, there are two views: either the taking is forbidden since he can resort to the judge; or, and this is the madhhab, it is permitted, Hind having been permitted although she could have litigated, the procedure causing her hardship. The creditor then takes the measure of his right if the property is of the same kind; if it is of another kind, he takes it without being able to own it: he sells it and allocates the price to his right. There are two views on the sale: either he brings a man to testify that his right exists and that the debtor refuses to pay, and the judge sells; or, and this is the madhhab, he sells it himself, proof before the judge being inaccessible. If the object perishes before the sale, there are two views: it perishes from the debtor's guarantee without the debt being extinguished, the property being sequestered to secure the right, like a pledge; or it perishes from the creditor's guarantee, he having taken it without permission, unlike a pledge taken with the owner's permission ("al-Muhadhdhab", 2/317, 318; "al-Tanbih", p. 265).
Al-Nawawi (may Allah have mercy on him) draws from the hadith of Hind that one who has a right and cannot recover it may take from his debtor's property the measure of his right without his permission: such is our school; Abu Hanifah and Malik forbade it ("Sharh Sahih Muslim", 12/7).
This opinion permitting the taking, even outside the kind of the right, is the fatwa of the later Hanafis. Ibn Abidin (may Allah have mercy on him) reports that al-Hamawi, in his commentary on the "Kanz", transmits from al-Maqdisi, from his grandfather al-Ashqar, from the commentary on the "Quduri" by al-Akhsab, that the prohibition of taking outside the kind dated from their time, owing to people's diligence in honoring rights; today's fatwa permits the taking when possible, from whatever property it may be, especially in our lands, given the persistence of violations. The poet said:
Woe to this age: it is an age of violated rights, not of rights;
every companion in it is without fellowship, every friend without sincerity.
Ibn al-Mundhir (may Allah have mercy on him) devotes a chapter to the depositary who denies the deposit and with whom the owner finds an equivalent among his property: if a man deposits a hundred dirhams and the depositary denies them, then this denier deposits with the first man a hundred like coins, al-Shafi'i and the partisans of personal opinion (ashab al-ra'y) permit taking them from his property; for measured or weighed goods such as wheat and barley, if he deposits an equivalent, he takes it by way of offsetting. Malik said: he does not deny it and does not take it. According to al-Shafi'i, if he comes upon merchandise, he may sell it and take his money from its price; the partisans of personal opinion do not permit him to withhold it. Abu Bakr deems al-Shafi'i's view sound, drawing on the hadith of Aisha in which the Prophet (peace and blessings be upon him) said to Hind: "Take what suffices you and your children, in a known manner" ("al-Ishraf", 6/341, 342). According to the Hanbali narration that permits, al-Zarkashi specifies: he takes the measure of his right if he finds its kind, without taking from another kind so long as he can take from his own; if he finds only another kind, he takes the value of his right seeking equity, the position of Abu al-Barakat, of Abu al-Khattab in "al-Hidayah" and others; it is one of two possible readings according to Abu Muhammad, as with the pledge. The second reading forbids it, for it would amount to selling another's property on one's own initiative without permission. This question is called the question of seizure (zafar) ("Sharh al-Zarkashi", 3/434, 435).
The second opinion: one who finds his right may take nothing from the one withholding it. This is a Maliki opinion chosen by Khalil, the narration of Ibn al-Qasim from Malik ("al-Tamhid", 20/159, 160; "Sharh Mukhtasar Khalil", 6/118; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/139, 140; "al-Taj wal-Iklil", 4/277, 280; "Tahbir al-Mukhtasar", 4/361, 362; "Balghat al-Salik", 3/360; "Minh al-Jalil", 8/550), and the madhhab of the Hanbalis ("al-Mughni", 10/175, 277; "al-Sharh al-Kabir", 11/363; "al-Mubdi", 10/97; "al-Insaf", 11/308, 310). Their evidence is the hadith reported by Ahmad, Abu Dawud and others, from Yusuf ibn Mahak al-Makki: I used to write the stipends of orphans for their administrator; he defrauded them of a thousand dirhams, paid them, and I had the double taken from his property. He said: shall I take the thousand they took from you? He replied: no; my father reported to me that he heard the Messenger of Allah (peace and blessings be upon him) say:
"Render the trust to the one who entrusted you, and do not betray the one who betrayed you."Reported by Ahmad in his Musnad (no. 15462) and Abu Dawud (no. 3534); the scholars debated its authentication, and al-Tirmidhi graded it hasan
The "Mudawwana al-Kubra" treats of one who entrusts property, a loan or a sale, is denied his due, and then the denier deposits with him an equivalent: Malik was asked several times about the man who deposits or lends a thousand dirhams, is denied his right, then receives in deposit a thousand dirhams or is sold merchandise for that price: may he deny in return because of the right he was denied? Malik answered: he does not deny it; and he justified his answer by the hadith "Render the trust to the one who entrusted you, and do not betray the one who betrayed you" ("al-Mudawwana al-Kubra", 15/160). Ibn Batal reports the scholars' disagreement over one who denies another's deposit and with whom the depositor then finds property, and the two narrations of Malik's opinion, Ibn al-Qasim holding the prohibition on the strength of the hadith ("Sharh Sahih al-Bukhari", 6/584).
Ibn Qudamah sets out: one who has a right that is acknowledged and offered may take only what is given him, without disagreement; if he takes without permission, he must return it, even if it equals his right, for one does not take possession of an object of another's wealth without his choice, absent necessity, even of the kind of his right, since a man may have a purpose in the very object. If the object perishes, it becomes a debt, and debts of the same kind offset one another according to the qiyas of the madhhab and the prevalent opinion of al-Shafi'i. If the debtor withholds for an excusing cause, such as deferral or insolvency, no taking is permitted, and whatever is taken must be returned if it survives or its substitute if it perished; no offsetting here, for the debt is not yet due. If the debtor denies without right and the creditor can compel him through the judge or the ruler, taking by his own hand remains forbidden: he can have it paid through a representative, like his agent. If he cannot, the denier having no proof to offer and no willingness to litigate, or not being able to be compelled to it, the prevalent opinion of the madhhab forbids the taking: this is one of the two narrations from Malik. Ibn 'Aqil notes that the traditionists of the madhhab made permission a view drawn from the hadith of Hind; Abu al-Khattab infers the permission from it. If the available property is of the kind of the right, one takes its measure; otherwise one has it appraised with care, on the strength of the hadith of Hind and Ahmad's view concerning the pledged mount that is ridden and milked to the measure of its upkeep, the wife who takes her dower, and the seller who takes back his merchandise from the insolvent's property without his consent ("al-Mughni", 10/175, 277; "al-Kafi", 4/510, 511; "al-Insaf", 11/308, 312).
Al-Shafi'i: if he cannot recover the very object of his right, he takes the measure of his right, of its kind or of another; with proof and the ability to compel, there are two views. The prevalent opinion of Malik: if the debtor has no other debt, the taking of the measure of the right is permitted; if he has debts, it is forbidden, for the creditors would contend over his property in case of insolvency.
Abu Hanifah permits the taking of the measure of the right if it is an object, silver, or of the kind of the right; if it is merchandise, it is forbidden: taking merchandise in place of a right is an exchange, and exchange is lawful only by the consent of the two parties. Allah, the Most High, said:
"Except it be trade by mutual consent between you."
Surah An-Nisa, 29
Those who permit the taking invoke the hadith of Hind, reported by al-Bukhari and Muslim: if the wife may take from her husband's property what nourishes her without his permission, the man who has a right over another has it all the more. The proponents of the prohibition answer with the Prophet's saying (peace and blessings be upon him): "Render the trust to the one who entrusted you, and do not betray the one who betrayed you", reported by al-Tirmidhi who graded it a hasan hadith: taking the measure of one's right without the debtor's knowledge is a betrayal that falls under the hadith; and the Prophet (peace and blessings be upon him) said: "The property of a Muslim is not lawful except with his good pleasure." Taking outside the kind would be an exchange without consent; taking of the same kind does not allow designating the property without the owner's agreement, the designation belonging to him: one cannot say "take my right from this sack rather than that one". And everything whose appropriation is not permitted without a debt is not permitted with a debt either, as if the debtor had discharged it willingly.
As for the hadith of Hind, Ahmad excuses it by saying that her right is owed to her at all times, which signals the hardship of litigation at every due date of the maintenance, unlike a debt. Abu Bakr notes another difference: a subsisting marriage is like a standing proof, the right being known through its cause. Two further differences:
On this opinion, what is taken must be returned if it survives, or its like and value if it perished; if it is of the kind of the debt, the two offset one another according to the qiyas; otherwise he bears its payment. Those of our companions who permit the taking specify: if he finds the kind of his right, he takes its measure, without excess; he does not take outside the kind so long as he can take of his own kind; if he finds only another kind, there are two interpretations: the taking cannot become his property since he could not sell it himself without drawing suspicion upon himself; or it is permitted, like the pledged mount that is ridden or milked to the measure of its upkeep, though it be outside the kind. Al-Shafi'i's companions differ: some permit it; others require that he find a man who claims before the judge the right and the existence of the property taken, that the debtor refuse to pay, and that the judge sell the property to the creditor's benefit ("al-Mughni", 10/175, 277; "al-Kafi", 4/510, 511; "al-Insaf", 11/308, 312).
The third opinion: one who finds the kind of his right may take it; outside the kind, the taking is not permitted to him, unless his right is in dirhams and he finds dinars, or the reverse: the taking is then lawful by agreement. The Hanafis state it: if the property found is of the kind of the right, the taking is permitted; if it is of another kind, as when a creditor in money finds merchandise, it is forbidden. But if his right is in dirhams and he takes dinars, or the reverse, the taking is permitted by qiyas according to Abu Yusuf and Muhammad, and by istihsan according to Abu Hanifah: the ground of the istihsan is their unity in monetary worth; hence one is added to the other in zakat although they differ in form, in reality and in law, no riba of surplus running between them; which distinguishes merchandise, whose purposes attach to their forms and their objects ("al-Mabsut", 11/128, 129; "Bada'i al-Sana'i", 7/71, 72; "Tabyin al-Haqa'iq", 5/199, 200; "Majma al-Damanat", 2/393; "Hashiyat Ibn Abidin", 6/150, 151).
Al-Sarakhsi (may Allah have mercy on him) applies it: when the depositary denies the deposit and then deposits with its owner an equivalent that he can retain, the latter takes it in offset for what was lost of his deposit; the property became a debt upon the depositary by his denial, and the creditor who finds the kind of his right in the debtor's property may take it. The basis of it is the Messenger of Allah's word (peace and blessings be upon him) to Hind: "Take from Abu Sufyan's property, in a known manner, what suffices you and your children." The interpretation of this word: the hand and the tongue belong to the holder of the right; it means taking the kind of his right if he finds it, likewise when a debt is denied and then deposited in equivalent form. If the deposited property is outside the kind, the creditor cannot retain it: between different kinds there is sale, in which he cannot be the sole party; the first situation falls under recovery, the privilege of the holder of the right. Ibn Abi Layla (may Allah have mercy on him) upheld the equalization of the two by their monetary nature, but it is a remote opinion: the deposit is an object that is not sequestered in the name of that nature absent a right of ownership; the pledge is not comparable, the pledgee sequestering by virtue of the pledgor's grant which conceded him hand and authority over the object, and being able to recover his debt in case of loss in the name of that very nature.
When the deposits resemble one another and the second man asks the first depositor to swear, he may swear by Allah: "I am not required to hand over anything to you". If the claimant says to the judge: "make him swear that he did not deposit that sum with me", it is granted to him, unless the accused specifies: "it happens that one deposits and is not required to return": by answering with this wording, he asks the judge to take account of it. If he does not mention it, the judge makes him swear that he deposited nothing of what is claimed; yet he must not take such an oath, for he would be lying, and no license exists for a false oath. The way out: to intimate to the judge what precedes, or to swear: "you deposited nothing with me except such and such property", excepting in his speech what he conceals from the claimant and the judge; this is permitted him, for he is wronged, repelling harm without intending harm. His mere intention does not suffice: the exception must be uttered, for it alone shows that his words do not cover what he excepts, and intention can neither abrogate nor contravene speech. It suffices to imagine a man bringing his ear close to another's mouth: he would hear and understand ("al-Mabsut", 11/128, 129; "Bada'i al-Sana'i", 7/71, 72; "Tabyin al-Haqa'iq", 5/199, 200; "Majma al-Damanat", 2/393; "Hashiyat Ibn Abidin", 6/150, 151).
Ibn Abidin (may Allah have mercy on him) comments further: the phrase "without his command" is explained by the creditor's right to take by his own hand the kind of his right without the debtor's consent, whence the judge's right to designate it ("Zayla'i"). The words "and likewise if it were" cover his property and his debt, some copies carrying the dual. The istihsan stands despite the qiyas that forbids, that route not being the fixed route for discharging a debt: it resembles merchandise. The unity in monetary worth grounds the istihsan and the adding of one to the other in zakat, no riba of surplus running between them: the unity gives the judge authority to dispose, the difference removes it from the creditor, the two resemblances applying, unlike merchandise whose purposes attach to forms and objects. I saw in "al-Mujtaba" this explicit meaning: one who finds his debtor's dinars while owed a dirham may take it, by virtue of their unity of kind in monetary worth. The same remark of al-Hamawi, with the poem cited above, recurs in the "Sharh Talkhis Jami al-Kabir" of al-Farisi, in the chapter on the oath in barter ("Hashiyat Ibn Abidin", 6/150, 151).
The fourth opinion: the taking is permitted even if the creditor can proceed through the judge, when the right is established by acknowledgment or by proof, or when its cause is apparent; otherwise it is not permitted. This is the choice of Sheikh al-Islam Ibn Taymiyyah and his student Ibn al-Qayyim ("al-Fatawa al-Kubra", 4/365; "Ighathat al-Lahfan", 2/77; "al-Insaf", 11/311). Ibn Taymiyyah (may Allah have mercy on him) teaches: when a man withholds from another a right, the taking without permission is permitted if the cause of the right is apparent and needs no proof, such as the wife's right to maintenance from her husband, that of relatives to their upkeep, that of the guest to the hospitality of him who receives him. If the cause of the right is hidden and needs proof, the taking is not permitted: such is the explicit rule of Imam Ahmad, and the most equitable opinion ("al-Fatawa al-Kubra", 4/365).
Asked about the man who has a debt over another that the debtor denies, or who usurps property, and who then comes upon property of the same kind: may he take from it the measure of his right? Ibn Taymiyyah answers that there are two cases. If the cause of the right is apparent, needing no proof, such as the wife's and child's maintenance or the guest's hospitality, the taking without permission is lawful without the least doubt: the two Sahihs report that Hind bint 'Utbah told the Prophet (peace and blessings be upon him) that Abu Sufyan was miserly and gave her of the maintenance only what sufficed her and her children, and he said: "Take what suffices you and your children, in a known manner"; he thus permitted her to take her maintenance in a known manner without her husband's permission. Likewise one who knows that his property was usurped by a notorious usurpation and takes the usurped property or its equivalent from the usurper's property; likewise one who has a debt with a judge who defers it and takes its equivalent, and similar cases ("Majmu al-Fatawa", 30/371, 375).
If the cause of the right is not apparent, as when the debt or the usurpation is denied without proof, there are two views: the taking is forbidden, the madhhab of Malik and Ahmad; or permitted, the madhhab of al-Shafi'i. Abu Hanifah permits the taking of the kind of the right, which is a recovery, and forbids that of another kind, which is an exchange requiring the debtor's consent. The partisans of permission say that the refusal to pay establishes the exchange without consent by necessity. Those who forbid invoke the hadith of Abu Hurayrah: "Render the trust to the one who entrusted you, and do not betray the one who betrayed you"; the hadith of Bashir ibn al-Khasasiyyah, who asked: "O Messenger of Allah, we have neighbors who leave nothing of ours aside without taking it; if we gain the power over something of theirs, shall we take the like of what they take?" He answered: "No. Render the trust to the one who entrusted you, and do not betray the one who betrayed you"; and the hadith of the collectors of charity, asking whether they should take from their property the like of their exactions, to which the Prophet (peace and blessings be upon him) answered: no, reported by Abu Dawud and others. These hadiths show that the wronged one's right, when its cause is not apparent, does not permit him the taking, which becomes betrayal, even if he intends the equivalent of his right: he betrayed the one who entrusted him his property by taking part of it without permission. His claim to be justified in this situation does not make his right apparent, like the man who marries a woman who denies the marriage without proof: to overpower her for consummation without apparent proof is not permitted to him; and if the judge were to rule a woman's divorce on the strength of testimony that the husband believes sincere but which is false in secret, he could not touch her, the inward command binding upon him.
Should it be objected that this prevents him outwardly and that he cannot expose it before the people, who are commanded to denounce it since it is outwardly forbidden, while the matter is known to him in secret between him and Allah; it is answered that doing it in secret entails many forbidden corruptions: he may act believing the matter hidden while it becomes public, open the door to misleading interpretations, and become like the wronged one who cannot obtain justice except by injustice, or like him who cannot apply qisas except by aggression: qisas is then forbidden to him. Betrayal is in itself forbidden in its very kind: the right cannot be recovered by it, just as one would not make one's debtor drink wine, nor defile oneself with him, nor bear false witness against him: all this is forbidden in its kind, and betrayal is of the kind of lying.
Should it be objected that it is not a betrayal but a recovery, the Prophet (peace and blessings be upon him) having forbidden only to betray the betrayer in the sense of taking from his property the like of his due; the answer rests on three points:
Retaliation in kind is authorized by the verses of Surah Ash-Shura, 40, Surah An-Nahl, 126, and Surah Al-Baqarah, 194; "do not betray the one who betrayed you" therefore establishes that betrayal is among what cannot be repaid in kind ("Majmu al-Fatawa", 30/371, 375).
Ibn al-Qayyim (may Allah have mercy on him) summarizes, after reporting these opinions: if the cause of the right is apparent, such as marriage, kinship or the guest's right, the creditor takes the measure of his right, the Prophet (peace and blessings be upon him) having permitted it to Hind from Abu Sufyan's property, and having permitted one who lodges with a people without being hosted to take the like of what is due him, according to the hadith of 'Uqbah ibn 'Amir reported in the two Sahihs, the hadith of Miqdam Abu Karimah in the Musnad: "Whoever lodges with a people, it is incumbent upon them to host him; if they do not, he may take from them the like of what is due to him", and the hadith of Abu Hurayrah in Ahmad's Musnad: "Any guest who lodges with a people and rises deprived of his due may take what covers it, with no blame upon him." If the cause of the right is hidden, to the point that the taking exposes him to accusation and to the imputation of treachery outwardly, it is not permitted to him, even if he takes his right in secret: just as he cannot expose himself to the accusation that would set the people upon his honor, even while claiming his innocence. This is the soundest opinion, the strongest, the most conforming to the rules and foundations of the Law, and the one by which the hadiths are reconciled ("Ighathat al-Lahfan", 2/75, 79).
A fifth Maliki opinion forbids the taking if the debtor owes no debt; if he does, the creditor takes only his share. Al-Qarafi (may Allah have mercy on him) reports in "al-Jawahir", in the book of deposit: when the creditor finds the kind of his right without being able to recover it, as when his deposit is denied and he is then given an equivalent, there are five opinions: Ibn al-Qasim holds in the "Kitab" the prohibition; Ashhab mere disapproval; Ibn Abd al-Hakam reports that Abd al-Malik preferred it, so as to deliver the oppressed from the wrongdoer. The fifth opinion: all this applies when the debtor owes no debt; if he does, the creditor takes only his share ("al-Dhakhira", 8/213).
Usurper and owner may agree on the usurpation yet differ over the value of the property, its amount, its description, its return, its loss or otherwise: does the verdict follow the usurper or the owner? If the two agree on the usurpation but differ over the value, one saying ten and the other fifteen, with no proof on either side, the usurper's word prevails with his oath according to the majority of jurists: Hanafis, Shafi'is and Hanbalis; the basis is the innocence of his liability, which binds him only to what he acknowledged, as with a debt of which he acknowledges a part; unless the owner establishes proof ("al-Muhadhdhab", 1/376; "al-Najm al-Wahhaj", 5/196; "Mughni al-Muhtaj", 3/305; "Tuhfat al-Muhtaj", 7/62; "Nihayat al-Muhtaj", 5/196; "al-Dibaj", 2/394; "al-Inayah", 9/68; "al-Fatawa al-Hindiyya", 5/138; "Majma al-Damanat", 1/331; "al-Mughni", 5/170; "al-Kafi", 2/413; "Kashshaf al-Qina", 4/139; "Matalib Uli al-Nuha", 4/64).
The Shafi'is specify: if proof establishes a value greater than that acknowledged by the usurper, without excessive excess, it is heard and the usurper is charged with the increase up to the limit where the proof ceases to be decisive; it has been said that it is not heard at all. Al-Kasani (may Allah have mercy on him) generalizes: any disagreement over the very fact of usurpation, the kind, the type, the amount, the description or the value of the property on the day of usurpation, the usurper's word prevails, for the owner claims a guarantee that the usurper denies, and the word of the denier prevails in the Law ("Bada'i al-Sana'i", 7/163, 164).
The Malikis: in case of disagreement over the amount without proof, the usurper's word prevails with his oath if his statement is plausible, whether the owner is plausible or not; if the usurper's statement is not plausible, his owner's word prevails with his oath. Ahmad al-Sawi (may Allah have mercy on him) notes two questions in their disagreement over the amount. The first: the usurper of a purse whom he throws into the sea without knowing its contents: the usurper's word prevails with his oath according to Malik and Ibn Naji, and this is the fatwa, the contents being knowable by prior knowledge or by sequestering the usurper. Mutarrif, Ibn Kinanah and Ashhab give the word to the owner if he advances a plausible statement and owns a like: he asserts with certainty, the other by approximation; this, when the usurper had not previously disappeared with the property, otherwise his word prevails with his oath without disagreement ("Hashiyat al-Sawi", 8/240; "Mawahib al-Jalil", 7/263; "al-Taj wal-Iklil", 4/322; "Sharh Mukhtasar Khalil", 6/145; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/181; "Tahbir al-Mukhtasar", 4/403; "al-Qawanin al-Fiqhiyya", 1/218; "Sharh Miyara", 2/428; "Minh al-Jalil", 7/130).
The second: Abd al-Malik rules for a band that attacks a man's dwelling before the people's eyes, plundering it, the witnesses attesting the attack and the plunder without the plundered objects: the plundered man is given nothing upon his oath, even with a plausible statement, except with proof. Ibn al-Qasim: the plundered man's word prevails with his oath if it is plausible and he owns a like. Ibn Juzayy al-Kalbi of Granada (may Allah have mercy on him): any disagreement over the kind, the description or the amount without proof turns upon the usurper's word with his oath, the usurper guaranteeing what he usurped, whether the loss comes from Allah's decree or from a creature ("al-Qawanin al-Fiqhiyya", 1/218). Al-Kharsahi summarizes: the usurper who says the property perished, while its owner denies it, prevails, for he is the debtor; likewise regarding its description and amount, with an oath in the three questions, in accordance with the "Mudawwana": the usurper's word counts for the description and the amount when it is plausible, whether the owner is plausible or not; if it is not and the owner's is, judgment is given by the average of the values after their two oaths, each statement negating its author's claim; and it is understood from "its description and its amount" that in a disagreement over the kind the verdict is otherwise: absent plausibility on both sides, the usurper's word prevails, since he is the debtor and the average value cannot apply ("Sharh Mukhtasar Khalil", 6/145).
The two agree on the usurpation but differ over the loss: the usurper says it perished, the owner that it subsists. The Malikis, the Shafi'is according to the sound opinion and the Hanbalis give the word to the usurper with his oath: he may be truthful yet unable to produce proof of the loss, and refusing to believe him would lead to his being detained forever; if he swears, the owner is compensated with the like or the value, having been unable to reach the object of his property by the usurper's oath ("al-Muhadhdhab", 1/376; "al-Najm al-Wahhaj", 5/196; "Mughni al-Muhtaj", 3/305; "Tuhfat al-Muhtaj", 7/62; "Nihayat al-Muhtaj", 5/196; "al-Dibaj", 2/394; "Mawahib al-Jalil", 7/263; "al-Taj wal-Iklil", 4/322; "Sharh Mukhtasar Khalil", 6/145; "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi", 5/181; "Tahbir al-Mukhtasar", 4/403; "al-Qawanin al-Fiqhiyya", 1/218; "Sharh Miyara", 2/428; "al-Mughni", 5/170; "al-Kafi", 2/413; "Kashshaf al-Qina", 4/139, 140; "Matalib Uli al-Nuha", 4/64).
The Shafi'is also have an opinion giving the word to the owner with his oath, the basis being the property's persistence. The Hanafis, for their part: when the usurper asserts that the property perished in his hand, the owner refusing to believe him and no proof existing, the judge detains the usurper for a period at the end of which he would have produced it had it subsisted, then rules against him with the guarantee; for the original rule of usurpation is the return of the object, the value being but a deviation: so long as the impossibility of return is not established, no judgment for the value is given ("Bada'i al-Sana'i", 7/163).
When the usurper says he returned the property and the owner denies it, the owner's word prevails according to the majority: Hanafis, Shafi'is and Hanbalis; for the basis is non-return and the occupation of his liability by the property: the usurper acknowledges the cause of the guarantee, the usurpation, and claims what would absolve him of it ("al-Tanbih", p. 116; "al-Mughni", 5/171; "al-Kafi", 2/413; "Kashshaf al-Qina", 4/140; "Matalib Uli al-Nuha", 4/64).
The Hanafis explain: the acknowledgment of usurpation is an acknowledgment of the cause of the guarantee; claiming to have returned it amounts to claiming the annulment of that cause, and is believed only with proof; the owner's word that he received nothing back prevails with his oath, unless the usurper establishes proof. In case of conflicting proofs: if the owner proves that the mount or the car perished with the usurper through his act, and the usurper that he returned it to the owner, the owner's proof is accepted and the usurper owes the value; for the usurper's proof does not repel the owner's, which is compatible with a return followed by a new usurpation and a destructive use. If the owner proves the usurpation and the loss with the usurper, and the usurper the return followed by the loss with the owner, there is no guarantee: the owner's witnesses may have relied on the presumption of continuity, knowing of the usurpation without knowing of the return, while the usurper's witnesses attested the actual truth, the return being an event that occurred, which gives their testimony the greater weight. According to Abu Yusuf, the usurper guarantees ("Bada'i al-Sana'i", 7/164; "al-Muhit al-Burhani", 5/414; "al-Bahr al-Ra'iq", 8/136; "Majma al-Damanat", 1/332; "al-Fatawa al-Hindiyya", 5/138).